EWTN asks federal court to reconsider its HHS mandate case

Washington D.C., May 4, 2016 / 15:51 pm

The Eternal Word Television Network (EWTN) has asked a federal court to reconsider its ruling forcing the company to comply with the revised HHS mandate, based on an admission by the federal government in its brief before the Supreme Court.

"The government admitted what we have said from the beginning," said Michael Warsaw, CEO of EWTN. "Once you get past the bureaucratic smokescreen, this really comes down to one issue: the government wants to hijack our health plan. EWTN cannot let them do it."

EWTN, the world's largest religious media network, is one of hundreds of non-profits and charities suing the federal government over its mandate – and the revisions it made to the mandate – that requires employers to offer health plans including contraceptives, sterilizations, and drugs that can cause early abortions.

The government's revision to the mandate was what it called an "accommodation" for non-profits who religiously objected to providing the coverage. The parties would send a notice of their objection to the government, who would then notify their insurer of the objection. The insurer would provide the contraception coverage separately.

In the current HHS mandate case before the Supreme Court, Zubik v. Burwell, a number of charities including the Little Sisters of the Poor and the Archdiocese of Washington have argued that sending their notice of objection to the government still constitutes tacit acceptance and facilitation of a morally-objectionable act, providing contraceptives for employees. They are basically acting as a "gatekeeper" for the objectionable coverage, they argued.

Furthermore, they say that the government is unconstitutionally "hijacking" their health plan, which is an agreement between them and their insurer, in forcing the unwanted coverage into the plan.

EWTN lost its initial case at the 11th Circuit Court of Appeals in February. A panel of judges ruled 2-1 that the government had indeed forced the network, under threat of heavy fines, to choose between its religious beliefs and participating with a morally-objectionable act in honoring the mandate.

Nevertheless, the judges ruled that the government was not imposing a "substantial burden" on EWTN's religious beliefs by doing so. Federal law protects from government action that "substantially burdens" a person's religious beliefs, unless that action is for a "compelling government interest" and is the "least-restrictive means" of furthering that interest.

The dissenting opinion in the ruling sharply disagreed, saying that the ruling "runs roughshod over the sincerely held religious objections of Eternal Word Television Network."

Now EWTN wants the 11th Circuit Court to reconsider the decision. The Supreme Court, in a historically rare move in the middle of the case, asked both sides in the Zubik v. Burwell case to submit supplemental briefs outlining an alternative solution – if any – that would fulfill both parties' interests of contraceptive coverage and religious freedom.

The government, in its supplemental brief, "essentially" admitted that it is "taking over" the health plans of the Little Sisters and other non-profits, Daniel Blomberg of the Becket Fund for Religious Liberty told CNA. Since EWTN is a non-profit as well, the same standard would apply to its own case.

"The government's been arguing all along that it's not really forcing EWTN to do anything except sign some paperwork," he said. Meanwhile, EWTN has said that the government is indeed "forcing" them to do something very significant, to "sign something that changes my health care plan, the plan that I administer and I stay involved with."

The 11th Circuit had sided with the government that the revised mandate only asked EWTN to perform a task the equivalent of raising its hand, which was not a "substantial burden" on its religious beliefs, Blomberg explained.

Now, the government's admission in the supplemental brief that it is intruding on health plans, he continued, acknowledges that "this is a hijack of a plan that forces [EWTN] to be involved -- as long as they're providing health care, they're involved in the government's scheme."

It is "something much more significant and something only EWTN can do, and that is create new legal responsibilities for their health care plan to start providing drugs that violate their faith."

EWTN broadcasts to over 258 million television households in more than 145 countries and territories. It also broadcasts via satellite radio, internet radio and other media. Its publications include the National Catholic Register. Its news services include Catholic News Agency.